United States District Court, D. Nevada
before the court is petitioner Jose Figueroa's abridged
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255. (ECF No. 80).
before the court is petitioner's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 93). The government filed a response (ECF No. 95),
to which petitioner replied (ECF No. 102).
March 8, 2011, the government filed an indictment charging
the petitioner with six counts of interference with commerce
by robbery (“Hobbs Act robbery”), one count of
conspiracy to commit Hobbs Act robbery, and seven counts of
use and carry of a firearm in relation to a crime of
violence. (ECF No. 1). On April 27, 2012, petitioner pleaded
guilty to one count of conspiracy to commit Hobbs Act robbery
(count 1), six counts of Hobbs Act robbery (counts 3, 5, 7,
9, 11, and 13), and one count of discharging a firearm during
a crime of violence (count 8). (ECF No. 59). Importantly,
petitioner pleaded guilty to count eight (discharging a
firearm during a crime of violence), which, according to the
indictment, was tethered to count seven (one of the Hobbs Act
robbery counts). See (ECF Nos. 1, 59).
August 27, 2012, the court sentenced petitioner to 180 months
imprisonment on counts I. 3, 5, 7, 9, 11, and 13 (“to
be served Concurrently”), and 120 months imprisonment
on count 8 (“to be served Consecutively”),
resulting in a cumulative term of imprisonment of 300 months.
(ECF Nos. 74, 75). This sentence constituted an upward
departure of 43 months in accordance with the plea agreement.
See (ECF No. 59). The court entered the judgment on
the same day. (ECF No. 75). Petitioner did not appeal the
prisoners “may move . . . to vacate, set aside or
correct [their] sentence” if the court imposed the
sentence “in violation of the Constitution or laws of
the United States . . . .” 28 U.S.C. § 2255(a).
Relief pursuant to § 2255 should be granted only where
“a fundamental defect” caused “a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 345 (1974); see also Hill v.
United States, 368 U.S. 424, 428 (1962).
on § 2255 motions are based on the fact that the movant
“already has had a fair opportunity to present his
federal claims to a federal forum, ” whether or not he
took advantage of the opportunity. United States v.
Frady, 456 U.S. 152, 164 (1982). Section 2255 “is
not designed to provide criminal defendants multiple
opportunities to challenge their sentence.” United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
instant motion, petitioner moves to vacate pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson”), and requests that the court
resentence petitioner. (ECF No. 93). In particular,
petitioner argues that his conviction violates the
Constitution's guarantee of due process.
Johnson, the United States Supreme Court held the
residual clause in the definition of a “violent
felony” in the Armed Career Criminal Act of 1984, 18
U.S.C. § 924(e)(2)(B) (“ACCA”), to be
unconstitutionally vague. 135 S.Ct. at 2557. The ACCA defines
“violent felony” as any crime punishable by
imprisonment for a term exceeding one year, that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
18 U.S.C. § 924(e)(2)(B) (emphasis added). The
emphasized above is known as the ACCA's “residual
clause.” Johnson, 135 S.Ct. at 2555-56. The
Court held that “increasing a defendant's sentence